Friday, December 16, 2011

With the coming Holiday Season, the BLS Library Blog will be away until the New Year. Brooklyn Law School and the BLS Library will close on Saturday, December 24 and reopen on Tuesday, January 3. Looking back at the history of the celebration of the Christmas holidays in the US shows that in early America, work went on as usual on Christmas day. Puritan influence in parts of New England stemming from the time of Cromwell in England discouraged Christmas celebration. See Nigel Jamieson, Oliver Cromwell – The Grinch That Stole Christmas, 26 Statute L. Rev. 189 (2005) (full text available in WestlawNext at this link). Before the Civil War, the North and the South were divided on the issue of Christmas. Many northerners thought it was sinful to celebrate Jesus' birth or to put up a decorated tree. Most southerners, however, enjoyed the traditions of Christmas. Alabama was the first state to make it a legal holiday in 1836. Ohio did not legalize Christmas until 1857.

Christmas Day did not become a federal holiday until 1870 when President Ulysses S. Grant declared it a legal holiday. Rep. Burton Chauncey Cook (Ill.) introduced HR 2241 in the 41st Congress to make the day a holiday in the District of Columbia. After the Senate and the House agreed on the final wording, President Grant signed it into law on June 28, 1870. The act (a facsimile of which is available at the Library of Congress Century of Lawmaking for a New Nation website here) reads:

An Act making the first Day of January, the twenty-fifth Day of December, the fourth Day of July, and Thanksgiving Day, Holidays, within the District of Columbia. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the following days, to wit: The first day of January, commonly called New Year's day, the fourth day of July, the twenty-fifth day of December, commonly called Christmas Day, and any day appointed or recommended by the President of the United States as a day of public fast or thanksgiving, shall be holidays within the District of Columbia, and shall, for all purposes of presenting for payment or acceptance of the maturity and protest, and giving notice of the dishonor of bills of exchange, bank checks and promissory notes or other negotiable or commercial paper, be treated and considered as is the first day of the week, commonly called Sunday, and all notes, drafts, checks, or other commercial or negotiable paper falling due or maturing on either of said holidays shall be deemed as having matured on the day previous. APPROVED, June 28, 1870 by President Ulysses S. Grant

Wednesday, December 14, 2011

Earlier this month, the Department of Health and Human Services in a memorandum blocked a Food and Drug Administration recommendation to make Plan B available without a prescription to women under 17. The executive decision has drawn a response from a group of 15 US Senators who have sent a letter to HHS seeking the specific rationale and data that went into the decision. Now, US District Court for the Eastern District of New York Judge Edward R. Korman, Brooklyn Law School Class of 1966, has invited the Center for Reproductive Rights to file a motion to reopen its case, Tummino v. Hamburg, which accuses the FDA of failing to respond to a 2001 petition to remove age restrictions on Plan B and its generic form. The Center for Reproductive Rights press release states that “The FDA has essentially been holding women’s reproductive health hostage to political calculations.” The CRR, with the Association of Reproductive Health Professionals and National Latina Institute for Reproductive Health, brought suit challenging the FDA’s decision to restrict access to emergency contraception. In 2009, Korman issued an Order ruling in favor of the women’s groups and ordered the FDA to act within 30 days to extend over-the-counter access to 17-year-olds. Judge Korman rejected a request to hold the Food and Drug Administration in contempt of court over its policy on the emergency contraceptive Plan B but said he would consider reviewing the government's refusal to make it easier for girls and women to get the drug. The judge will hear arguments over whether the agency should have allowed the sale of the morning-after pill to girls younger than 17 without a prescription. He also instructed advocacy groups to file the appropriate legal motions, specifically suggested adding Health and Human Services Secretary Kathleen Sebelius to the lawsuit. For more information, see the Bloomberg article on this story.

Saturday, December 10, 2011

This week, the US Supreme Court heard oral arguments in Williams v. Illinois on whether a defendant’s rights were violated with the admission of expert testimony about the results of a DNA test where there was no opportunity to confront the actual analysts. Defendant’s attorney, in appealing a decision of the Illinois Supreme Court upholding the rape and kidnapping conviction, argued that without an analyst from the lab present to testify about the DNA results, the defendant’s rights were violated, especially since the lab tests themselves were not entered into evidence. The Illinois Supreme Court ruled that there was no violation of the defendant’s confrontation right because the findings of the lab report were being admitted only to explain the expert’s opinion about the results.

Since the Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004), Confrontation Clause jurisprudence has been an active area of case law. Earlier this year, the Supreme addressed the Confrontation Clause and lab tests in two cases: Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico. The Court ruled that the Confrontation Clause barred the testimony of a surrogate analyst about testimonial statements of the certifying analyst in the forensic report. But the Williams case differs from those cases because instead of introducing the report of the analyst who performed the DNA test, the state of Illinois called another analyst to discuss it. Without cross examination of the person who conducted the test, there remains a question whether the test was performed according to proper procedures. Having an expert who did not actually perform the test discuss the report asks the jury to assume the tests were performed correctly.

The briefs related to the Williams case are available at SCOTUSblog including an amicus brief of the District Attorney of New York County arguing against an “all technicians must testify” rule for New York’s more than 100,000 criminal cases each year as the associated “costs and logistical hurdles would make it all but impossible to prosecute them successfully.” It is natural for prosecutors to ask the courts to make their jobs easier using arguments of scarce resources. The administration of justice is costly but failing to enforce basic procedural rights is costlier. For more on this topic, see the ABA Journal article The Latest Test on the Confrontation Clause by Erwin Chemerinsky.

On the subject of expert evidence, the Brooklyn Law School Library has in its collection the second edition of The New Wigmore: A Treatise on Evidence: Expert Evidence by David H. Kaye, etc. (Call # KF8935 .W486 2011), one volume of a five volume authoritative series that presents the same quality of research, thought, and analysis as the original Wigmore and a present-day counterpart to the seminal evidence treatise.

Friday, December 9, 2011

December 10th marks Human Rights Day 2011, an annual celebration that began in December 1950, when the General Assembly declared a resolution inviting member states to celebrate the day as they saw fit. Sponsored by the United Nations Office of the High Commissioner for Human Rights, Human Rights Day incorporates events, media, and stories about the impact of human rights around the world. The day is when we remember the creation 63 years ago of the Universal Declaration of Human Rights. Some of the rights embodied in the Declaration include the right to be free of torture, the right equal protection before the law, the right to marriage, and the right to education. This year, focuses on women's rights and opportunities.

This year, following a year of protest in countries from Tunisia to Cairo to the Occupy movement, the theme of 2011 recognized the significance of social media and technology in assisting human rights defenders in new ways. Today, the UN High Commissioner for Human Rights hosted a global conversation on human rights through social media. Earlier this week, US Secretary of State Hillary Clinton offered Remarks in Recognition of International Human Rights Day addressing the Human Rights of LBGT persons globally. Today’s focus of the US Library of Congress 2011 Human Rights Day Celebration was Women’s Rights and Opportunities.

Brooklyn Law School Library has an extensive collection of material both in print and online dealing with different aspects of human rights. See, for example, Women's Human Rights and Culture: From Deadlock to Dialogue by Rikki Holtmaat and Jonneke Naber (Call # K644 .H65 2011). The summary of this books states that “in all parts of the world, the implementation of women's human rights is seriously being hindered by gender stereotypes, religion, custom or tradition, in short by 'culture'. Culture is increasingly being used as an excuse to commit serious violations of these rights. It is also brought forward as the reason why governments refuse to implement them, arguing that their culture forces them to accept limited interpretations of international obligations in this area, or to reject such obligations altogether. This book provides women's human rights advocates with dissuasive arguments and effective strategies to avoid a deadlock between on the one hand upholding the principle of universality of human rights, and on the other hand the right to preserve and express one's culture.”

Thursday, December 8, 2011

The Second Circuit Court of Appeals in U.S. v. Dugan, 2011 WL 6015752, upheld the conviction of two men for obstructing the entrances to a Planned Parenthood clinic, interfering with clinic staff and patients, in violation of the Freedom of Access to Clinic Entrances (FACE) Act. The defendants were charged with a Class B misdemeanor under 18 U.S.C. §248(a) which makes it a crime to engage in nonviolent physical obstruction of a reproductive health facility. First time offenders are eligible for a prison sentence of up to six months and a $10,000 fine. The statute which dates from 1994 is the subject of an ALR annotation, Validity, Construction, and Application of Freedom of Access to Clinic Entrances Act (FACE), 134 A.L.R. Fed. 507, (available in Westlaw).

The conviction followed a one-day bench trial held last year in the US District Court for the Southern District where Judge Robert W. Sweet found both men guilty and ordered them to serve four-month prison sentences. Defendants appealed arguing they were entitled to a jury trial. The per curiam opinion stated that “The right to a jury trial is guaranteed by Article III, § 2 and the Sixth Amendment of the U.S. Constitution. However, the Supreme Court has long held that this right only applies to prosecutions of “serious,” and not “petty,” offenses.” For more detail, see the NY Law Journal article on the decision.

The Brooklyn Law School Library collection has The Law of Juries by Nancy Gertner and Judith Mizner with chapters: Right to a jury trial; Compositional challenges; The law of voir dire; Peremptory challenges; Venue; Jury nullification; Dealing with jury conduct/misconduct; The structure of the jury; Issues arising from jury deliberations.

Wednesday, December 7, 2011

Brooklyn Law School students interested in summer internships should know that the Center for Court Innovation is accepting applications for its Summer 2012 Law School Internship Program. This is an unpaid internship, which will run for eight weeks to ten weeks, commencing in late May or early June and concluding in August. Founded as a public/private partnership between the New York State Unified Court System and the Fund for the City of New York, the Center for Court Innovation is a non-profit think tank that helps courts and criminal justice agencies aid victims, reduce crime and improve public trust in justice. The Center combines action and reflection to spark problem-solving innovation locally and nationally. In New York, the Center functions as the court system’s independent research and development arm, creating demonstration projects that test new ideas, such as community courts, drug courts, reentry courts, domestic violence courts, mental health courts, and juvenile justice initiatives. Interested applicants should submit a letter of interest, a resume, the names and telephone numbers of two professional references, and a writing sample (limit 5-7 pages) in one document (a PDF is recommended) to legalinternships@courtinnovation.org no later than December 23. Indicate in the reference line one or two of the following areas of interest: drug courts, mental health courts, juvenile justice policy, education advocacy, program evaluation, community courts, community violence prevention.

Tuesday, December 6, 2011

Law students often write lengthy papers and exams answers believing more is better. But readers, including both law professors and judges, take brevity seriously. See for example the case of Mylward v. Weldon, 21 ER 136 (1596), where the Chancery Court of England punished an aspiring lawyer and ordered that a pleading 120 pages long be removed from the file because it was about eight times longer than it needed. He ordered the pleader be taken to the Fleet prison and that on the next Saturday the Warden of the Fleet bring the pleader into Westminster Hall at 10 a.m. and then and there cut a hole in the midst of the pleading and place it over the pleader’s head so that it would hang over his shoulders with the written side outwards. The Warden had to lead the pleader around Westminster Hall while the three courts were sitting and display him “bare headed and bare faced” and then be returned to the Fleet prison until he had paid a £10 fine – a huge sum in those days. The complete text is available in a facsimile at this link. This tale of the bareheaded lawyer gives legal writers a vivid image of what not to do. The Second Circuit, citing the case in Varda, Inc. v. Insurance Co. of North America, 45 F.3d 634 (2d Cir. 1995), stated that the plaintiff's brief "stirs nostalgia for the rigors of the common law."The Brooklyn Law School Library has in its reserve collection Thinking Like A Writer: A Lawyer's Guide To Effective Writing And Editing by Stephen V. Armstrong and Timothy P. Terrell (Call #KF250 .A76 2009) which consists of six parts including Chapter 10 - Words: Precision and Brevity. The book has exercises, examples, and writing do's and don'ts, and gives step-by-step instruction on the specialized techniques to draft clear and persuasive legal documents.

Monday, December 5, 2011

"Cloud computing" which Webopedia defines as a "type of computing that is comparable to grid computing, relies on sharing computing resources rather than having local servers or personal devices to handle applications. The goal of cloud computing is to apply traditional supercomputing power (normally used by military and research facilities) to perform tens of trillions of computations per second." Cloud computing makes it possible to store data and software platforms and services to be stored offsite in the "cloud". There are a number of risks to storing sensitve information in the cloud. An article on Politico reports on the growing international concern with U.S.-based cloud computing services due to privacy fears.

Two recent papers on the impact of the USA Patriot on US cloud computing providers act are worth reading.

Law Enforcement and Cloud Computing, an article Law firm in discusses two perspectives:“From an EU perspective, concerns have recently been voiced about the access to data by US law enforcement agencies under the USA PATRIOT Act. However, EU law enforcement agencies also have broad powers to access information placed in the cloud.From a cloud user’s perspective, this essentially means that sound information management practice, not the USA Patriot Act or similar laws in other countries, should govern decisions regarding what data is appropriate for what range of storage sites, including use of cloud services.”

UK Cloud Computing Interception – nothing new, an article that discusses UK situation. "Some UK cloud-computing customers are concerned that they should not entrust US cloud-providers with their data for fear of US law enforcement interception. If interception is so much of a concern they should not only avoid US cloud providers but also should avoid using the UK’s telephone, the Internet, and the postal system. The interception of communications, whether stored in the 21st Century cloud or sealed in 16th Century scrolls, and whether here in the UK or in the US, is nothing new. All communications data, where justified, may be intercepted by the State’s watchful and proportional eye.”

For more on the Patriot Act, see How Patriotic is the Patriot Act?: Freedom Versus Security in the Age of Terrorism by Amitai Etzioni (Call #KF4850 .E88 2004 ) in the Brooklyn Law School Library collection. This brief guide deals with an important issue -- the balance between personal freedom and collective security in the age of terrorism. It presents principled analyses and suggestions for change and is thoroughly documented.

Sunday, December 4, 2011

Brooklyn Law School Library has these study tools and services to assist students prepare for exams. Extended HoursThe Law Library will open for extended hours during the reading and exam periods.Reading/Examination Period: December 8 – 23, 2011Seven days a week: 8:00am–2:00amDecember 23 close at 10:00pm

Study RoomsThe Library uses an online study room reservation system during the reading and exam period. Beginning on Thursday, December 8 at 12:01am you may make a reservation for a group study room for that day and for two days ahead. A link to the Study Room Reservation System will be found on the Library web page under “Related Links” at that time.Study rooms are for the use of groups of two or more people and cannot be reserved for one individual. Students are only permitted four hours of study room space per day. Instructions for making reservations are:

1. Select the time duration for your reservation: 30 minutes, 1 hour, 2 hours, 3 hours or 4 hours.2. Select the study room number. Click the “Study Room” link at the top of the page for descriptions of the study rooms.3. Select the number of people in your group.4. Choose the date for your reservation.5. Choose the time your reservation will begin by clicking an open slot on the grid.6. New users will need to register as “New User.” You will create your own username and password. Returning users will need to enter their username and password.7. Click “Finalize Room Reservation” link.8. Print your room reservation to present at the circulation desk.9. At the time of your reservation go to the circulation desk to obtain the key to the room. During this period all study rooms are kept locked.10. Online study room reservations for the exam period end Friday, December 23.

Online Study Aids

The CALI website has a Lessons by Casebook chart which may make finals prep a little easier.Law School Past ExamsPast exams are available to students as a teaching aid. You can access them from the law school portal page: Brooklyn Law School Portal > Academics > Exams & Grading > Final Exams > Exams on File.

Friday, December 2, 2011

Congratulations to Michael A. Sabino, Brooklyn Law School Class of 2012, for winning the Winter 2011 Student Legal Writing Contest sponsored by the National Law Review for his article Football and Antitrust Law: American Needle v. NFL and Its Meaning for Combinations in Restraint of Trade and the Rule of Reason in the 21st Century. Michael is an intern for the Hon. Leonard Wexler, U.S. District Court, Eastern District of New York. He served as an intern with the U.S. Attorney for the District of Massachusetts, Organized Crime Strike Force; Hon. Leonard B. Austin, Appellate Division, Second Department, New York State Courts; District Attorneys of New York, Queens, and Nassau Counties. Michale has also published other articles this year. See From Chiarella to Cuban: The Continuing Evolution of The Law of Insider Trading, 16 Fordham J. Corp. & Fin. L. 101 (March 2011) and Shale-Gas Case Ringing Alarms in State-Level Mineral-Rights Law, 28 Natural Gas & Electricity 5 (December 2011).